When can a payor spouse pay non-Federal Child Support Guidelines child support based on undue hardship?

Almost all spouses who owe child support will pay child support according to the Federal Child Support Guidelines (“the Guidelines”) as opposed what we term 'non-Federal Child Support Guidelines child support' in this article. However, in certain situations, a court will permit a payor spouse to depart from the Guidelines child support amount owed based on a successful undue hardship claim.

The Guidelines states in section 10(1): “On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.”

The test for undue hardship has two parts per D(S) v M(J) 2013 CarswellOnt 15251. First, the claimant must prove undue hardship with reference to section 10(2) of the Guidelines. Section 10(2) outlines the circumstances that may cause a spouse or child to suffer undue hardship:

1. The spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
2. The spouse has unusually high expenses in relation to exercising access to a child;
3. The spouse has a legal duty under a judgment, order, or written separation agreement to support any person;
4. The spouse has a legal duty to support a child, other than a child of the marriage, who is under the age of majority, or the age of majority or over but is unable, by reason of illness, disability, or other cause, to obtain the necessaries of life; and,
5. The spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

The second step of the test is that the claimant must show that the standard of living in their household is lower than the standard of living in the household of the other party per section 10(3) of the Guidelines. According to section 10(3) “Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.” A standard of living test can be done using Schedule II of the Guidelines.

If the claimant spouse is successful in proving their undue hardship claim, a judge will then make an order for an appropriate reduction in Guidelines child support (i.e. non-Federal Child Support Guidelines child support).

If you have questions about child support or non-Federal Child Support Guidelines child support, contact the experienced divorce lawyers at Krol & Krol for a consultation at 905.707.3370.